Karabakh Flights: Getting Legal Counsel

Azerbaijan is using international aviation law to justify its threats to shoot down aircraft using the allegedly soon-to-open airport in Nagorno Karabakh, the territory that Azerbaijan lost to Armenians two decades ago. But are they interpreting the law correctly? I asked an aviation lawyer with experience in the Caucasus, whose response, essentially, was "not really." The entire response is at the bottom of this post; it's very lengthy but worthwhile if you're interested in how the law might apply here. (The lawyer asked not to be identified.)

In short, the Chicago Convention is the act that regulates international aviation; both Armenia and Azerbaijan are signatories, and it is what Azerbaijan has used in public justifications of the policy to shoot down aircraft in its airspace. After the Soviet Union shot down a Korean Airlines passenger jet in 1983, the convention was amended to more precisely deal with civilian aircraft violating another country's airspace. As the lawyer explains, in this case Azerbaijan would have to make a positive identification that this is a military flight before shooting it down:

For example, before using force, Azerbaijan would need to undergo a reasonable investigation or determination into the nature of the flight to determine if the flight is civil or military (state). This investigation could determine also if there existed "reasonable grounds" to conclude that the aircraft was being used for a purpose inconsistent with the aims of the Chicago Convention... such as using civilian aircraft to transport arms across or into sovereign territory without disclosure and prior approval (see recent example of Turkey grounding Syrian civil aircraft flying from Moscow to Syria over Turkey, accused of carrying unauthorized arms). Most likely, this would involve communications to the flight crew to confirm the purpose and nature of the flight and perhaps a visual confirmation as to the type of aircraft (e.g., B-737 vs. military aircraft).

Following determination that it was an unauthorized civil aircraft, Azerbaijan could instruct the aircraft to leave the airspace or require the landing at some designated airport. In any case, Azerbaijan must not endanger the lives of persons on board and the safety of aircraft.

As I understand it, only if the flight were to ignore all the communications from Azerbaijan would the latter be justified in shooting it down.

However, it seems clear that Azerbaijan invoking the law is a smokescreen. Under the law, they would actually be justified in shooting down the various helicopters that the de facto Karabakh government operates for military and VIP transport -- but they don't, because it would be a huge provocation. And shooting down a civilian airliner would be vastly more provocative.

So why are they making these threats? Obviously, having passenger air service to Karabakh would be a big step in normalizing life there, by connecting the people who live there with the outside world. And the more normal things get under the current authorities in Karabakh, the harder it will be to restore Azerbaijani control. When members of the Minsk Group, the body trying to bring peace to Karabakh, visited last summer they issued this statement regarding the airport:

The Co-Chairs reaffirmed that operation of this airport cannot be used to support any claim of a change in the status of Nagorno-Karabakh, and urged the sides to act in accordance with international law and consistent with current practice for flights over their territory.

It's that sort of "claim of a change in status" that Azerbaijan is probably worried about. My lawyer correspondent noted this as well, suggesting that by claiming the right to shoot down flights Azerbaijan may simply be trying to maintain its claim over the airspace, whether or not it actually does anything about it.

Anyway, the lawyer's full letter:

It appears that Azerbaijan is seeking to ground its decree (or regulatory act) concerning Karabakh Airport under the Chicago Convention.

Article 1 states that "The contracting States recognize that every State has complete and exclusive sovereignty over the airspace above its territory."

Article 2 states that "For the purposes of this Convention the territory of a State shall be deemed to be the land areas and territorial waters adjacent thereto under the sovereignty, suzerainty, protection or mandate of such State."

Accordingly, the decree can be interpreted as an exercise of Azerbaijan's "complete and exclusive sovereignty" of the airspace of Karabakh, which Azerbaijan claims as its territory. Azerbaijan would likely ground its sovereignty or mandate under U.N. Security Council Resolutions 823, 853, 874 and 884, which have all called for the withdrawal of Armenian forces from the occupied territories in Karabakh. The U.N. Security Council also used these resolutions to reaffirm the sovereign and territorial integrity of Azerbaijan.

The decree can also be viewed as an explicit protest against any perceived encroachment or threat to Azerbaijan's claim to exclusive sovereignty over Karabakh, and its airspace. If Azerbaijan were to allow unauthorized flights to Karabakh airport, without seeking to exert some form of control, it could be interpreted as a concession. International legal disputes such as this often involve overt acts and stated declarations affirming a State's claimed jurisdiction or protesting another State's rival claim.

The "practice of states" combined with "opinio juris" - the recognition of States to the legality of an act - serves as elements to the creation of customary international law. Thus, States are hyper vigilant to prevent the creation of unwanted customary international law, especially in territorial or jurisdictional disputes. (e.g., see current dispute between Japan and China in East China Sea, over Senkaku/Diaoyu Islands).

Article 3 denotes the difference between a "civil" aircraft and "state" (including military aircraft). It states that "(a) This Convention shall be applicable only to civil aircraft, and shall not be applicable to state aircraft. (b) Aircraft used in military, customs and police services shall be deemed to be state aircraft. (c) No state aircraft of a contracting State shall fly over the territory of another State or land thereon without authorization by special agreement or otherwise, and in accordance with the terms thereof. (d) The contracting States undertake, when issuing regulations for their state aircraft, that they will have due regard for the safety of navigation of civil aircraft."
Interestingly, from your interview with the Azeri Network individual, some Azerbaijanis may claim that any and all non-authorized flight, including an Armenian civil aircraft, would be deemed a "state aircraft." But advocates of this aggressive position, who also quote the Chicago Convention for support, would run into the counter result that the Chicago Convention would not apply to such a flight, as per the exclusionary language of Article 3(a).

A more nuanced view, perhaps considered by the Azerbaijan Government, is that if Armenian state aircraft (military, custom, police services, per Article 3(b)) enter Azerbaijan's claimed airspace then such flights need prior approval or risk violating Article 3(c). And such non-authorized state flights by Armenia would be open to potential military action outside the scope of the Chicago Convention. See more on this below.

Notably, both Armenia and Azerbaijan, when issuing regulations or decrees such as the one in question,
must have due regard for the safety of navigation of civil aircraft. In turn, assuming that any non-authorized aircraft flying into Azerbaijan's claimed airspace, such as over Karabakh, is a "state" aircraft or involves a "military" purpose, without any further investigation as to its actual nature, such that the protections of the Chicago Convention no longer apply, would not be consistent with the aims of Article 3.

This principle is further affirmed with Article 3 bis, which specifically amended the Chicago Convention, in the wake of the Korean Airlines Flight 007 incident during the Cold War. Flight 007 accidentally intruded upon Soviet airspace and the Soviet air force shot down the plane. Importantly, this controversial incident led to an ICAO investigation and more explicit protection for civil aircraft and clear rules for interception.

The text of Article 3 bis is particularly instructive:

(a) The contracting States recognize that every State must refrain from resorting to the use of weapons against civil aircraft in flight and that, in case of interception, the lives of persons on board and the safety of aircraft must not be endangered. This provision shall not be interpreted as modifying in any way the rights and obligations of States set forth in the Charter of the United Nations.

(b) The contracting States recognize that every State, in the exercise of its sovereignty, is entitled to require the landing at some designated airport of a civil aircraft flying above its territory without authority or if there are reasonable grounds to conclude that it is being used for any purpose inconsistent with the aims of this Convention; it may also give such aircraft any other instructions to put an end to such violations. For this purpose, the contracting States may resort to any appropriate means consistent with relevant rules of international law, including the relevant provisions of this Convention, specifically paragraph (a) of this Article. Each contracting State agrees to publish its regulations in force regarding the interception of civil aircraft.

Furthermore, the drafting history of Article 3 bis indicates that it is declaratory of the existing general international law with respect to the following elements:

(1) the obligation of States to refrain from resorting to the use of weapons against civil aircraft in flight;

(2) the obligation, in case of interception, not to endanger the lives of persons on board and the safety of aircraft; and

(3) the right of States to require landing at a designated airport of a civil aircraft flying above its territory without authority or if there are reasonable grounds to conclude that it is being used for any purpose inconsistent with the aims of the Convention.

When interpreting and applying the decree, Azerbaijan would need to adhere to the guidelines of Article 3 bis. For example, before using force, Azerbaijan would need to undergo a reasonable investigation or determination into the nature of the flight to determine if the flight is civil or military (state). This investigation could determine also if there existed "reasonable grounds" to conclude that the aircraft was being used for a purpose inconsistent with the aims of the Chicago Convention (see also Article 4, misuse of civil aviation), such as using civilian aircraft to transport arms across or into sovereign territory without disclosure and prior approval. See Article 35, Cargo Restrictions (see recent example of Turkey grounding Syrian civil aircraft flying from Moscow to Syria over Turkey, accused of carrying unauthorized arms). Most likely, this would involve communications to the flight crew to confirm the purpose and nature of the flight and perhaps a visual confirmation as to the type of aircraft (e.g., B-737 vs. military aircraft).

Following determination that it was an unauthorized civil aircraft, Azerbaijan could instruct the aircraft to leave the airspace or require the landing at some designated airport. In any case, Azerbaijan must not endanger the lives of persons on board and the safety of aircraft.

Importantly, however, Article 3 bis (a) states that this "provision shall not be interpreted as modifying in any way the rights and obligations of States set forth in the Charter of the United Nations." This language would further preserve any right to use force, Article 4 of the UN Charter, or the right to self-defense in the event of an armed attack under Article 51 of the UN Charter. This is a whole other body of law, but I would note that in cases of self-defense the response must be meet the principles of “necessity” and “proportionality.” How might this work in the real world?

Aviation following September 11th, which involved the use of civilian aircraft as weapons, raises a good example. The United States has made parts of the country restricted airspace, such as over the White House. If the U.S. Air Force tried to intercept a civilian aircraft that ventured into restrictive airspace and that civilian aircraft did not respond (failed to communicate its nature and purpose) and continued towards for example the White House, then the U.S. Air Force would most assuredly shoot down that aircraft and be justified as a matter of self-defense.

Furthermore, Article 9 of the Chicago Convention is also relevant. It states as follows:

(a) Each contracting State may, for reasons of military necessity or public safety, restrict or prohibit uniformly the aircraft of other States from flying over certain areas of its territory, provided that no distinction in this respect is made between the aircraft of the State whose territory is involved, engaged in international scheduled airline services, and the aircraft of the other contracting States likewise engaged. Such prohibited areas shall be of reasonable extent and location so as not to interfere unnecessarily with air navigation. Descriptions of such prohibited areas in the territory of a contracting State, as well as any subsequent alterations therein, shall be communicated as soon as possible to the other contracting States and to the International Civil Aviation Organization.

(b) Each contracting State reserves also the right, in exceptional circumstances or during a period of emergency, or in the interest of public safety, and with immediate effect, temporarily to restrict or prohibit flying over the whole or any part of its territory, on condition that such restriction or prohibition shall be applicable without distinction of nationality to aircraft of all other States.

(c) Each contracting State, under such regulations as it may prescribe, may require any aircraft entering the areas contemplated in subparagraphs (a) or (b) above to effect a landing as soon as practicable thereafter at some designated airport within its territory

Again, like the scenario under Article 3 bis, you can imagine that Azerbaijan feels that this language is applicable and gives them ground to intercept nonauthorized aircraft flying over Azerbaijan into Karabakh. It appears from the comments from your interview, that Azerbaijan has filed notice with ICAO and Armenia regarding the “prohibited territory” in this case (i.e., Air Defense Identification Zone (ADIZ)).

To me Article 89, which speaks of “war and emergency conditions” and allows for “freedom of action of any of the contracting States affected, whether as belligerents or as neutrals” in such conditions, has to be limited by the laws of war and int’l humanitarian law, both of which protect civilians. Freedom of action does not mean shooting down civilian aircraft.

Use of force should be the last resort. That being said, if Azerbaijan followed the steps laid out in the Chicago Convention for interception of unauthorized aircraft in declared prohibited territory, and such aircraft refused to cooperate with instructions or failed to communicate its intentions, Azerbaijan could make a credible case that it was complying with international law.